187 Ga. 448 | Ga. | 1939
Lead Opinion
The case of Hooper v. Martin, supra, was evidently cited by the Court of Appeals through inadvertence instead of the case of Harrell v. Word, 54 Ga. 649. Counsel for the plaintiff in error insists that the case of Harrell v. Word necessitates an affirmative answer to the question propounded. They rely on the following portion of the opinion: “1, 2. The power of the courts to punish for contempt in Georgia is limited. The constitution declares that it shall be limited, and requires legislation to prescribe the limits: Code, section 5009. The legislature of the State has prescribed those limits: Code, section 4711. That section confines the power to cases in the presence of the courts, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official
We have examined the original record in Harrell v. Word, supra, on file in the office of the clerk of this court. The plaintiffs in fi. fa. filed a written motion to set aside a sheriff’s sale, not addressed to any court or to any judge, the motion containing averments that the sheriff had fraudulently exposed the land for sale, and he, the defendants in fi. fa., and the purchaser had conspired and confederated for the purpose of defrauding the movants, who were the plaintiffs in fi. fa., in having said land sold. It contained no prayer of any kind, but concluded with the sentence, “wherefore they move the court to set aside said sale.” It was in no sense an attachment for contempt. Following the signature of counsel appeared the following, which was also signed by counsel: “The
"First, in refusing to dismiss said rule on motion for want of service. Second, in overruling the demurrer of defendants’ attorneys to said motion or rule, and in deciding that a sale made by the sheriff could be set aside by motion or rule in this summary way. Third, in deciding that the court had jurisdiction in a proceeding of this kind to set aside the sale, although said sale had been consummated by the sheriff executing deed to the purchaser. Fourth, in deciding to set aside said sale, and that said decision is contrary to and against the evidence in said case. Fifth, in not submitting the issue of fact as to fraud to a jury.”
We have at some length set forth what the record shows in that case, in order to demonstrate that it therein affirmatively appears that that part of the order adjudging the sheriff in contempt was not excepted to, and its correctness was not before this court as an issue to be determined. The decision in Harrell v. Word, on the assignments of error there made, was correct. If, in reaching its conclusion, the Justice who delivered the opinion, in discussing the powers of the court to punish for contempt, used language which indicated that the General Assembly had by the constitution been given the right to define what are contempts, to classify them, and to take away from the courts created by the constitution jurisdiction to punish as contempts any act not mentioned in the statute, then such language must be classed as obiter.
The precise question here involved was squarely before the court in Bradley v. State, supra. In that case the facts were as follows: The contempt proceeding or information charged that the defendant "did commit the offense of contempt of court by the following conduct and act, to wit: in the case of Thomas H. Malone . . v. Mattie Adams . . then and there pending and on trial in said court, when, pending said trial, it became necessary to adjourn the further progress of the cause until Monday, April the 9th, 1900, at which time the said case was to be resumed in said court before
The first two headnotes in the Bradley case are as follows: “1. The power to punish contempts is inherent in every court of record. If the court is created by the constitution, the legislature can not,
The question propounded by the Court of Appeals is answered in the negative.
Concurrence Opinion
concurring specially. The ruling of this court in Bradley v. State, supra, is binding unless and until overruled by a full bench. For that reason I concur in the answer given to the certified question of the Court of Appeals. My own views, however, are as follows: The provision of art. 1, see. 1, par. 20, of the constitution (Code, § 2-120), that “the power of the courts to punish for contempt shall be limited by legislative acts,” should be taken to mean that the General Assembly is authorized to limit, in the sense of defining, what particular acts the courts are authorized to punish as for contempt, as well as to define or limit the punishment to be imposed, provided always that in exercising such authority it does not impair or destroy the inherent powers of courts which are necessary to their proper functioning. If this provision of the constitution should be otherwise interpreted, then the courts created by it would be stillborn, and it must not be assumed that the constitution would do the vain and useless thing of creating courts which might be deprived of the right and power to function save at the will and sufferance of any person who might care to challenge their lawful authority. In pursuance of the authority conferred on it by the constitution, the legislature passed the following statute: “The powers of the several courts to issue attachments and inflict summary punishment for contempt of court shall extend only to cases of misbehavior of any person or persons in the presence of said courts or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any officer of said courts, party, juror, witness, or other person or persons to any lawful writ, process, order, rule, decree, or command of the said courts.” Code, § 24-105. As I see it, in enacting this statute the legislature did not impair any necessarily inherent power of the courts. On the contrary, to my mind, it specifically recognized every such necessary, inherent, and, I might say, proper right which any court should and must have in order to fulfill the purposes of its establishment. It may be true that the legislature, in prescribing the limits of judicial power to punish for contempt, could have gone further than it did go, and thus could have enlarged the powers of courts to punish for con